Thursday, August 05, 1999

Death sentence overturned


Federal court rules trial judge erred in jury instructions

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        A federal judge overturned a Mount Auburn resident's death sentence Wednesday, saying the Hamilton County trial judge made a potentially fatal error.

        Barring a successful appeal by the Ohio attorney general, Jerome Henderson must be freed or resentenced to life in prison without parole for 20 or 30 years.

        U.S. District Judge S. Arthur Spiegel ruled that Hamilton County Common Pleas Judge Fred J. Cartolano violated Mr. Henderson's constitutional rights with misleading instructions to jurors.

        Although the aggravated murder conviction was untouched, Wednesday's ruling cheered Mr. Henderson's court-appointed Columbus attorneys, Gerald Simmons and Harry Reinhart.

        “We will appeal,” said Chris Davey, spokesman for the Ohio attorney general.

        Mr. Henderson was convicted of stabbing and beating neighbor Mary Acoff to death in her Highland Avenue home in March, 1985. He also was convicted of her attempted rape and aggravated burglary.

        Ms. Acoff and Mr. Henderson, both 26, were acquaintances.

        When state appeals failed, Mr. Henderson's attorneys turned to the federal court, arguing:

        • His Common Pleas trial was unconstitutionally unfair for various reasons.

        • Judge Cartolano violated Mr. Henderson's rights during sentencing.

        Wednesday, Judge Spiegel rejected the first argument, saying the trial met constitutional requirements for fairness.

        However, Judge Spiegel faulted Judge Cartolano's response when jurors reported being “deadlocked, period” on whether to impose the death sentence.

        Instead of telling them to move on and choose between 20- and 30-year life prison sentences, Judge Cartolano gave them what lawyers call a “dynamite” supplemental instruction meant to break the logjam on a death sentence.

        Attorneys Simmons and Reinhart said it was coercive and put “undue pressure” on jurors holding out against the death sentence.

        Judge Spiegel agreed, but said the sentencing problem began before that.

        “In essence, the trial judge's original charge to the jury was misleading ... and, as a consequence, his supplemental charge to the jury only increased the chance for an arbitrary sentence of death being imposed,” Judge Spiegel said in his 128-page decision.

        He said Judge Cartolano initially and mistakenly led jurors to believe they had to reject a death sentence unanimously before they could consider life imprisonment.

        Judge Spiegel said the supplementary instruction sent jurors back with the impression that was still their duty.

        That isn't Ohio law, Judge Spiegel said.

        Absent unanimous agreement on a death sentence, Judge Spiegel said, jurors must choose between the 20- and 30-year prison terms.

        If Judge Spiegel's order stands, Judge Cartolano will handle the resentencing without reconvening the jury.

       



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